MARINOV v BULGARIA

Application No. 26081/17

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WRITTEN SUBMISSIONS ON BEHALF OF VALIDITY FOUNDATION – MENTAL DISABILITY ADVOCACY CENTER

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Introduction

  1. These written comments are submitted by Validity (formerly the Mental Disability Advocacy Centre (MDAC)) pursuant to leave granted by the President of the Fifth Section of the Court under Rule 44(3), Rules of Court, by way of letter dated 8 December 2017.

Legal capacity and the right to vote in international law

  1. The position in international human rights law is as follows:

a)People with disabilities should be able to exercise the right to vote on an equal basis with other citizens.

b)As we do not test the capability to vote of other citizens, we should not test the capability to vote of people with disabilities. To do so is discriminatory.

c)People with disabilities must be provided with support, reasonable accommodations and accessibility measures must be put in place to ensure theirfull and effective right to vote.

  1. The Court has repeatedly held that the right to vote is not a privilege. In the twenty-first century universal suffrage has become the basic principle and the presumption in a democratic State must be in favour of inclusion.[1]Free elections are an essential pillar of democracy as “free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of democracy.”[2]In recognition of this, the right to vote is enshrined in Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights. Article 29 of the most recent core international human rights treaty, the UN Convention on the Rights of Persons with Disabilities (‘CRPD’), explicitly guarantees the right of people with disabilities to vote on an equal basis with others. It requires States to ensure voting procedures, facilities and materials are appropriate, accessible and easy to understand and use, and to guarantee the free expression of the will of persons with disabilities as electors, including by allowing, where necessary, at their request, assistance in voting by a person of their own choice.
  1. Despite the clear articulation of the right to vote in international law, people with intellectual disabilities and people with psychosocial disabilities continue to be denied this right in Europe. In particular, it is often restricted by laws allowing for total or partial deprivation of legal capacity and placement under guardianship.
  1. Placing people with mental disabilities under guardianship places them in a situation of acute vulnerability and exclusion from society. As the Council of Europe Commissioner for Human Rights points out, people placed under guardianship are more likely to be diminished in the eyes of service providers, community members, public officials or most importantly political decision-makers. He also added that “this diminishment contributes to the risk of stereotyping, objectification, and other forms of exclusion which people with disabilities disproportionately face, which in turn adds to the experience of powerlessness and the vulnerability to abuse and neglect.”[3]
  1. The Committee on the Rights of Persons with Disabilities (‘CRPD Committee’) hasnoted that, “denial or restriction of legal capacity has been used to deny political participation, especially the right to vote, for certain persons with disabilities.”[4]It has pointed out that, “legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights” as “the denial of legal capacity to persons with disabilities has, in many cases, led to their being deprived of many fundamental rights, including the right to vote, the right to marry and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty.”[5]Excluding people with disabilities from the political community by placing them under guardianship or otherwise denying them their right to vote means that their will, interests and preferences are not represented and they have no say in decision-making. This leads totheir further exclusion, invisibility and disempowerment, and exacerbates stigma and stereotyping.
  1. An array of international, regional and national laws, policies and statements has been adopted recently reinforcing the right to vote of people with mental disabilities and promoting their full inclusion and participation, including participation in political and public life which will be outlined below.
  1. The Court has noted several times that the Convention should be interpreted consistently with the general principles of international law and cannot be interpreted in a vacuum. The Convention is a living instrument which must be interpreted “in the light of present-day conditions”[6] and relevant international standards[7]: it must be read “in the light of the notions currently prevailing in democratic States.”[8] In interpreting its provisions and the scope of States’ obligations in specific cases, the Court will look “for any consensus and common values emerging from the practices of European States and specialised international instruments… as well as giving heed to the evolution of norms and principles in international law.”[9] These instruments include other Council of Europe instruments and the CPRD which is of prime relevance to the protection and promotion of the rights of people with mental disabilities.[10] Therefore, when the Court considers the issue of the violation of the right to vote of people with disabilities it is incumbent upon it to do so in harmony with the current European and international standards detailed below.
  1. Council of Europe standards
  1. In January 2009, the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1642[11] which states, in reference to Article 12 of the CRPD that:

“7. Firstly, the Assembly invites member states to guarantee that people with disabilities retain and exercise legal capacity on an equal basis with other members of society by: (...) 7.2 taking the necessary measures to ensure that, in accordance with the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol, people placed under guardianship are not deprived of their fundamental rights (not least the rights to own property, to work, to a family life, to marry, to vote, to form and join associations, to bring legal proceedings and to draw up a will), and, where they need external assistance so as to exercise those rights, that they are afforded appropriate support.”(emphasis added)

  1. More recently, on 10 March 2017, the PACE adoptedResolution 2155[12] which states:

“2. Political rights, such as the right to vote, stand for election and be elected, are fundamental human rights. Ensuring respect for the exercise of these rights by persons with disabilities does not mean creating a set of new rights or special rights for a specific category. Guaranteeing the respect of the political rights of persons with disabilities is a democratic issue relevant to the whole population, raising questions about the inclusiveness and efficiency of democratic systems.

(...)

4. The Assembly is convinced that the participation of persons with disabilities in political life can contribute to breaking down stereotypes, changing mindsets and combating overall discrimination.” The PACE called on Member States to: “delink the right to vote from legal capacity and full guardianship and, recalling Assembly Resolution 2039 (2015), replace substitute decision-making mechanisms with supported decision-making mechanisms, in respect of their international commitments.”

  1. The Council of Europe’s Disability Action Plan 2006-2015 obligedMember States to “ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability.”[13]
  1. In Recommendation CM/Rec(2011)14 to Member Stateson the participation of persons with disabilities in political and public life, the Committee of Ministers has made clear that all persons with disabilities have the right to vote on the same basis as other citizens and should not be deprived of this right by any decision or other measure based on their disability, cognitive functioning or perceived capacity:

“Bearing in mind the provisions of Action Line No. 12 “Legal protection” of the Council of Europe Disability Action Plan 2006-2015 and, as appropriate, Article 12 “Equal recognition before the law” of the UNCRPD, member states should ensure that their legislation overall does not discriminate against persons with disabilities in political and public life. They should make support available to persons who may need assistance in exercising their legal capacity in various aspects of life, in particular when exercising their right to vote, which is a universal right, in particular under the terms of Article 29 of the UNCRPD, as in other international legal instruments to which member states are parties. Member states should ensure that their legislation is devoid, at all levels, of provisions depriving persons with disabilities of the right to vote or stand for election.

All persons with disabilities, whether they have physical, sensory, or intellectual impairments, mental health problems or chronic illnesses, have the right to vote on the same basis as other citizens, and should not be deprived of this right by any law limiting their legal capacity, by any judicial or other decision or by any other measure based on their disability, cognitive functioning or perceived capacity.

Member states should ensure that discrimination based on disability is prohibited in all fields of political and public life, namely wherever it is a question of voting, standing for election, exercising a mandate and/or being active in political parties or non-governmental organisations, or exercising public duties. These discriminatory acts include the failure to comply with the obligation to implement reasonable accommodations (see point 2 above, “Accessibility”) for persons with disabilities so that they can fully enjoy their political rights.” (emphasis added).

  1. The Venice Commission’s Revised interpretative declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections makes clear that people with disabilities should be able to exercise their right to vote on an equal basis with other citizens.[14]The declaration identifies the five principles underlying Europe’s electoral heritage: universal, equal, free, secret and direct suffrage. It states that “Universal Suffrage means in principle that all human beings have the right to vote and to stand for elections”, adding that,“[p]eople with disabilities should therefore be able to exercise their right to vote and participate in political and public life as elected representatives on an equal basis with other citizens. The participation of all citizens in political and public life and the democratic process is essential for the development of democratic societies”.It went on to state that, “[v]oting procedures and facilities should be accessible to people with disabilities so that they are able to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting, with respect to the principle that voting must be individual.”
  1. These international standards make no distinction between blanket bans on voting and bans based on individual capacity assessments. They prohibit any restriction of the right to vote on the basis of disability, including on the basis of individualised capacity assessments. Thomas Hammarberg, the Council of Europe Commissioner for Human Rights addressed this in his statement dated 22 March 2011 when he discussed this Court’s decision in Kiss v. Hungaryin relation to CRPD standards and reflected on the discriminatory nature of mental capacity tests assessing the ‘voting competence’ of people with mental disabilities:

“...the Court ruling did not exclude the possibility in all circumstances of depriving a person of the right to vote – as long as the criteria and the procedures were acceptable. This makes it necessary to discuss the precise meaning of some key passages in the UN Convention on the Rights of Persons with Disabilities, which is more specific on this matter.

In fact, this treaty does not specify any exceptions to the rights therein, On the contrary, it stipulates that state authorities “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”

The very purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights by all persons with disabilities. This leaves no room for procedures in which judges or medical practitioners would assess the voting competence of a person and the give a green light – or not. As we do not test that capability for someone without disabilities, this would amount to blatant discrimination.

There are of course those who – because of their disability – have difficulties in fully exercising their human rights. In these situations society should offer assistance to make it possible for the individual to exercise them, including to take part in political life. The Convention places an obligation on governments to ensure that such assistance is provided if needed, including in exercising the right to vote. There is a huge difference between this approach and just depriving someone of their rights.”[15] (emphasis added).

  1. United Nations standards
  1. The CRPD was adopted unanimously by the UN General Assembly on 13 December 2006. At the time of submitting this third-party intervention, it has been ratified by 175 States. The European Union and all its Member States have signed or ratified the CRPD and 45 out of 47 Member States of the Council of Europe have ratified the treaty (all save for Ireland and Lichtenstein). Bulgaria ratified the CRPD in 2012. This signals a clear Europe-wide consensus on the provisions therein and a political will to be bound by the jurisprudence of the expert body charged with issuing authoritative interpretations of the CRPD, the CRPD Committee.
  1. In the disability context, the key and most recent standards of international law are those set out in the CPRD.[16] As the UN Special Rapporteur on Disability has put it, the CRPD provides “authoritative guidance on the rights of persons with disabilities supplementing the Covenant and other core human rights treaties.”[17]The CRPD has been used by the Court to guide its interpretation of ECHR provisions and the scope of States’ obligations in specific cases. InGlor v. Switzerland, the Court confirmed that it “considers that there is European and universal consensus on the necessity to protect persons suffering from disability from discriminatory treatment”,[18] and cited the CRPD for the first time.Since then the Court has cited and relied upon the CRPD in many cases, a recent example being AN v Lithuania.[19]
  1. Article 12 of the CRPD safeguards the right to legal capacity of people with disabilities and the right to supports to exercise that legal capacity.Article 29 unambiguously sets out the right of people with disabilities to vote and stand for elections on an equal basis with others. The requirements of Article 29 are supported by the general CRPD principles of equality and non-discrimination, full and effective participation and inclusion in society, and accessibility. Article 5 provides that all persons are entitled without any discrimination to equal benefit of the law and that State parties shall prohibit all discrimination on the basis of disability, and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.The CRPD places an obligation on States to ensure political participation in all stages of the policy cycle: agenda setting, planning, service delivery, and monitoring and evaluation.[20]
  1. It is clear under the CRPD that all people with disabilities – including people with severe intellectual and/or psycho-social disabilities – have the right to vote and stand for election. The CRPD – similar tothe Council of Europe instruments mentioned above – leaves no room for any court or other procedure in which someone’s voting competence can be tested and removed on the basis of incapability to vote due to an actual or perceived disability.Referring to Articles 12 and 29 of the CRPD, the CRPD Committee emphasised that “a person’s decision-making ability cannot be a justification for any exclusion of persons with disabilities from exercising their political rights.”[21] The unequivocal right of people with disabilities to exercise their right to vote was upheld in Bujdosó and 5 others v. Hungary,which found that "Article 29 does not provide for any reasonable restriction or exception for any group of persons with disabilities. Therefore, an exclusion of the right to vote on the basis of a perceived or actual psychosocial or intellectual disability, including a restriction pursuant to an individualized assessment, constitutes discrimination on the basis of disability, within the meaning of article 2 of the Convention".[22] Consequently, the Hungarian legislation that allows for the disenfranchisement of people with disabilities following an individualized judicial assessment was found to violate Article 29 of the CRPD.
  1. The CRPD recognises that some people with disabilities struggle to exercise their right to vote on a basis of equality with others and so Article 5 explicitly incorporates a duty to provide reasonable accommodation where requested in the realisation of all rights, including voting accommodations, while Article 2 recognises that failure to provide these reasonable accommodations is a form of discrimination. Article 9 contains an obligation to ensure accessibility of facilities and services. Article 29 reiterates this in the specific context of access to voting procedures, facilities and materials.
  1. The UN Special Rapporteur on Disability has repeatedly called for the recognition and facilitation of the right to vote of people with disabilities, drawing directly on the language of the CRPD: “Persons with disabilities must enjoy the right to vote and to be elected on an equal basis with others. No one should be restricted, either in law or in practice, in the enjoyment of political rights on the grounds of disability. States must guarantee the right of persons with disabilities to vote and to be elected, including by ensuring that the electoral process, the voting facilities and materials are adequate, accessible and easy to understand and use, and by facilitating the use of assistive and new technologies.”[23]

Recent national developments in legislation and practice in the Council of Europe region

  1. As it has been noted above, todate all but two Council of Europe Member States have ratified the CRPD. There has been continuous progress by States in recognising the need to ensure the right to vote of persons with disabilities as part of the CRPD implementation process. The CRPD Committee provides a strong impetus for national legislative and policy reforms on the political participation of people with disabilities through the growing number of its concluding observations to State Parties. In more than ten Council of Europe countries people with disabilities can exercise their right to vote without restriction.[24]As Sándor Gurbai remarks, as part of Member States implementation of the CRPD, “automatic deprivation of adults with intellectual disabilities, psycho-social disabilities and autism placed under guardianship of their voting rights was typically replaced by regulations according to which all adult persons with intellectual disabilities, psychosocial disabilities and autism including those placed under guardianship can freely exercise their right to vote.”[25]
  1. Reform initiatives have been indeed launched in several European countriessince the entry into force of the CRPD and, although some are yet to be finally adopted, they clearly reflect consensus ina move away from voting restrictions for people with disabilities. For example, legislative reforms entering into force in 2008 and 2009 in the United Kingdom and in the Netherlands respectively restored the right to vote of people deprived of legal capacity by removing legislative restrictions based on deprivation of legal capacity therefore allowing them to exercise their right to vote.[26] Legislative amendments in Hungary in 2011 and 2013 removed the previous blanket and automatic disenfranchisement of people placed under guardianship.[27]The Government justified these amendments as ensuring better compliance with the CRPD as well as with the judgment of the Court inAlajos Kiss v. Hungary.[28]Although not fully guaranteeing the right to vote of people with disabilities in all circumstances and while the CRPD Committee has continued to express concerns that the legislation allows for denial of the right to vote on the basis of a decision by a judge, the legislation is astep away from disenfranchisement on the basis of disability.[29]In the Czech Republic, a 2010 Constitutional Court decision[30] removed the blanket, automatic restriction on voting rights for people with disabilities under guardianshipand legislative amendments to the Civil Code and the Electoral Law in 2014abolished full deprivation of legal capacity.[31] In France, since 2009, a presumption against the right to vote for people under guardianship was reversed and can only be rebutted by an express judicial decision.[32]In Croatia, the 14 December 2012 Register of Voters Actguarantees that people under guardianship – who were previously excluded from the voting register and therefore not allowed to vote –are fully entitled to exercise their right to vote on a basis of equality with others.[33]Prior to adoption of the current text, a previous draft proposal envisioned the introduction of an individualised assessment of voting capacity by the courts.[34] However, this was excluded from the final version which contains no restrictions on the right to vote of people with disabilities.[35]
  1. In Moldova, May 2015 legislation guarantees people deprived of legal capacity the right to vote, although it will not enter into force until promulgated by the President of the Republic.[36]In Bulgaria, a draft law on legislative amendments under Article 12 of the CRPD which was published for public discussion by the Ministry of Justice in May 2016 envisages the abolition of guardianship and the introduction of a new measure of “supported decision making”. It would ensure the right to vote of all people with mental disabilities and provide assistance and support to those who need it in the exercise of their right to vote.

Jurisprudence of the Court